Probate, trust, guardianship and inheritance litigation
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North Dakota Supreme Court: Failure To Overcome Presumption of Undue Influence Results In Void Bill of Transfer

The presumption of undue influence under North Dakota law, once raised, must be overcome by the proponent of the instrument that is being challenged as the product of undue influence.  In the June 29, 2020 opinion in Zundel v. Zundel, the North Dakota Supreme Court affirmed the district court’s finding of undue influence related to a bill of transfer of various items of farm equipment.

The Facts of Zundel v. Zundel

Stephen Zundel sued his brothers, Loren and Richard, seeking possession of personal property subject to a May 2013 bill of transfer signed by their father, Edwin Zundel.

The bill of transfer gave Stephen Zundel multiple vehicles, “all gas-tanks and fuel-tanks,” “[a]ll [t]ractors,” “[a]ll payloaders,” “[a]ll drags,” “[a]ll [h]ay equipment,” “all welders; [a]ll compressors, tanks and accessories,” “[a]ll shop tools,” “[a]ll hydraulic presses and cranes,” and multiple other items. The bill of transfer also purported to transfer “anything remaining at the farm.”

Loren, the personal representative of Edwin’s estate, sought a declaratory judgment from the North Dakota court that the bill of transfer was invalid because Stephen obtained Edwin’s signature through undue influence, and because the document was falsely notarized by Stephen, who was not a notary public.

After a bench trial, the North Dakota district court found that Stephen had obtained his father’s signature on the bill of transfer through undue influence, and that the bill of transfer was not properly accepted because it had not been signed by a notary.  The district court judgment declared the bill of transfer void.

How Do You Prove Undue Influence In North Dakota?

“Whether undue influence occurred generally presents a question of fact.” Riskey v. Riskey, 2018 ND 214, ¶ 8, 917 N.W.2d 488 (citing Erickson v. Olsen, 2014 ND 66, ¶ 19, 844 N.W.2d 585). “Undue influence must be sufficiently proven, a mere suspicion is not enough.” Estate of Mickelson, 477 N.W.2d 247, 250 (N.D. 1991).

The North Dakota district court identified the elements of undue influence as:

  1. a person susceptible to undue influence;
  2. the opportunity to exercise such influence existed;
  3. there was a disposition to exercise such influence; and
  4. the result appears to be the effect of such influence.


However, the North Dakota Supreme Court noted that: “In nontestamentary cases, this Court has held ‘[a] finding of undue influence . . . requires that three factors be established:

  1. A person who can be influenced;
  2. The fact of improper influence exerted; and
  3. Submission to the overmastering effect of such unlawful conduct.'” Riskey, 2018 ND 214, ¶ 12, 917 N.W.2d 488.


Because none of the litigants challenged the application of the four-factor testamentary undue influence test, for purposes of this case, the North Dakota Supreme Court assumed that the four-factor test applies to whether undue influence occurred in the bill of transfer.  Given the evidence, it does not appear that a lesser test would have changed the result.

What Is The Presumption of Undue Influence Under North Dakota Law?

Section 59-18-01.1, N.D.C.C. provides a rebuttable presumption of undue influence for certain trust transactions and states:

A transaction between a trustee and the trust’s beneficiary during the existence of the trust or while the influence acquired by the trustee remains by which the trustee obtains any advantage from the trust’s beneficiary is presumed to be entered by the trust’s beneficiary without sufficient consideration and under undue influence. This presumption is a rebuttable presumption.

The North Dakota Supreme Court has stated that the presumption of undue influence “applies not only to transactions involving trustees, agents, and attorneys-in-fact, but also to all transactions involving confidential relationships.'” Riskey, 2018 ND 214, ¶ 15, 917 N.W.2d 488 (citing In re Estate of Harris, 2017 ND 35, ¶ 19, 890 N.W.2d 561 (quoting In re Estate of Bartelson, 2015 ND 147, ¶ 16, 864 N.W.2d 441)); see also In re Estate of Vizenor, 2014 ND 143, ¶¶ 26-27, 851 N.W.2d 119.

In this case, the North Dakota district court found that a confidential relationship existed which gave rise to a presumption of undue influence.  Stephen lived with Edwin from 2006 until he moved into a nursing home, and drove his father to appointments, funerals, out shopping, for groceries, to the cemetery, or anytime something required travel.  Stephen had a joint bank account with Edwin, signed checks for him, bought items for Edwin from that account, and paid Edwin’s bills.

The Evidence Failed To Overcome The Presumption of Undue Influence In This Case

The North Dakota district court concluded Stephen did not overcome the presumption of undue influence with credible evidence.

Opportunity To Influence

Regarding the first factor of the four-factor test applied by the North Dakota district court, the opportunity to influence:

Stephen Zundel testified he lived alone with his father since his mother passed away, and frequently saw his father alone after he lived in the nursing home. Stephen Zundel testified he tried to talk to his father everyday on the telephone to update him about what was going on at the farm. Stephen Zundel also testified he helped his father run errands, get to appointments, and was a joint owner on Edwin Zundel’s primary bank account. Loren Zundel also testified he believed Stephen Zundel wanted to be in control of who brought Edwin Zundel to his appointments. Stephen Zundel also testified no one else was in the room at the nursing home when Edwin Zundel signed the bill of transfer.


Susceptibility to Undue Influence

Regarding the second factor of the four-factor test applied by the North Dakota district court, the susceptibility to undue influence:

Stephen Zundel testified when Edwin Zundel was first released from the hospital he went into a nursing home. He also testified that Edwin Zundel was transferred to a different nursing home because he needed a higher level of care. Loren Zundel testified after Edwin Zundel was released from the hospital “he was not like he was before.” Loren Zundel testified Edwin Zundel was having memory lapses, and was physically declining. Stephen Zundel testified Edwin Zundel “was sharp up until the very end.”


Because it is not the purview of the North Dakota Supreme Court to reweigh evidence, or reassess witness credibility, the North Dakota district court’s findings that Loren’s testimony was more credible than Stephen’s testimony were not disturbed.

Disposition to Exercise Undue Influence

Regarding the third factor of the four-factor test applied by the North Dakota district court, the disposition to exercise undue influence:

The district court found Stephen Zundel had the disposition to exercise undue influence over Edwin Zundel to deprive his brothers of their legal rights. The district court found Stephen Zundel engaged in at least five legal disputes with his brothers since late 2012. The district court stated, “Simply put, Stephen clearly has shown a disposition to harass or harm his brothers, this time by depriving them of their share of the inheritance of their father’s property—largely of sentimental value.” Testimony supports the district court’s finding Stephen Zundel was upset with his brothers and wanted to deprive them of their legal rights. When asked whether Stephen Zundel felt his brothers were wronging him, he testified, “Yeah . . .” He also testified he complained to his father regularly over the course of a year about how his brothers would make it difficult for him to access Donald Zundel’s estate equipment, and that his brothers would sell Edwin Zundel’s personal property when he died and he would not be able to use it.

In addition:

The district court also heard testimony about previous litigation and disagreements between the families. Stephen Zundel testified he was court ordered to pay rent on his farm lease. He also testified about the buy-sell agreement dispute between him and Loren Zundel in January 2013. He also testified about the bin site lease which was before this Court. Zundel v. Zundel, 2017 ND 217, 901 N.W.2d 731. Loren Zundel also testified about Donald Zundel’s estate litigation, stating the court did not award Stephen Zundel damages based on his argument he was deprived of his fair and equal use of the estate equipment.

Result Appears To Be The Effect of Such Influence

Finally, regarding the fourth factor of the four-factor test applied by the North Dakota district court, that the result appears to be the effect of such influence:

Stephen Zundel testified he first raised the idea of the bill of transfer to his father. Stephen Zundel testified his lawyer drafted the bill of transfer and he itemized the personal property. This was in contrast to the power of attorney prepared by Edwin Zundel’s lawyer. He also testified the bill of transfer was signed only after he complained for a year about equipment being left in awkward places so he could not use it and his brothers’ alleged mistreatment of him. Stephen Zundel testified he told Edwin Zundel that Loren and Richard Zundel would take and sell his property if he did not transfer it to him.

The effect of the bill of transfer, if valid, was to transfer more to Stephen than if the personal property had gone through Edwin Zundel’s estate which divided the property amongst his heirs, and appeared to be the effect of undue influence.

Undue influence cases in North Dakota are challenging to win, even with a talented North Dakota probate lawyer.  In this case, Stephen’s failure to rebut the presumption of undue influence resulted in the bill of transfer being determined void.




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